The High Court held that proceedings under the Urban Land Ceiling Act abated under the Urban Land Ceiling (Repeal) Act, 1999, because the State Government failed to take possession of the surplus land as required by law.
Rule made absolute declaring that proceedings under the Act have abated; no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
SCA/13749/2011
1
JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No. 13749 of 2011
For Approval and Signature:
HONOURABLE MR.JUSTICE R.M.CHHAYA
=========================================================
1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the
constitution of India, 1950 or any order made
thereunder ?
5 Whether it is to be circulated to the civil NO
judge?
=========================================================
KISHORCHANDRA BHAGUBHAI - Petitioner(s)
Versus
STATE OF GUJARAT THRO THE PRINCIPAL SECRETARY & 1 - Respondent(s)
=========================================================
Appearance :
MR RAJESH K SHAHfor Petitioner(s) : 1,
MS ASMITA PATEL, AGP for Respondent(s) : 1 - 2,
NOTICE SERVED BY DS for Respondent(s) : 1 - 2.
=========================================================
CORAM : HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 13/07/2012
ORAL JUDGMENT
1.RULE. Ms. Asmita Patel, learned AGP waives
service of Rule on behalf of the respondents.
SCA/13749/2011
2
JUDGMENT
2.By way of this petition, the petitioner has
inter-alia prayed for the following reliefs:-
“a)Declaring that the proceeding and order
Ann.B under the Urban Land Ceiling and
Regulation Act, 1976, has abated under section
3 & 4 of the Urban Land Ceiling (Repeal) Act,
1999, and the order Ann.A has no effect.
b)Pending admission hearing and final
disposal of this petition, to stay the
operation of the order Ann.B and directing the
respondents to maintain status quo;
c)To award costs from the respondent;
d)To grant such other and further reliefs
to the petitioner as the nature of the case
and interest of justice may require.”
3.This Court (Coram: S.R. Brahmbhatt, J.) vide
order dated 19.9.2011 passed the following order:-
“Notice for final disposal returnable on
3/10/2011. Direct service permitted.”
4. Today Ms. Asmita Patel, learned AGP has tendered
an affidavit in reply filed for and on behalf of the
respondents which is taken on record and with the
consent of the learned advocates appearing for the
respective parties, the matter is taken up for final
disposal forthwith.
5. The facts which can be culled out from the record
SCA/13749/20113
JUDGMENT
of the petition are summed up as under:-
5.1The petitioner is the owner and occupier of the
eight parcels of lands situated in Adajan, Surat total
admeasuring 67475.13 sq. mtrs. It appears from the
record that the mother of the present petitioner
Maniben Bhagubhai filed form No.1 in her capacity as
the guardian of the present petitioner as well as
Gajendra Bhagubhai and declared that they hold the
following lands:-
Sr. |
Name of |
Survey No. |
Area |
Purpose |
|---|---|---|---|---|
No. |
Village |
(Sq. Mtr.) |
||
1 |
Adajan |
95 |
16795-00 |
Agriculture |
2 |
Adajan |
608- 609 |
12748-00 |
Agriculture |
3 |
Adajan |
235 |
11533-00 |
Agriculture |
4 |
Adajan |
73 |
9207-00 |
Agriculture |
5 |
Adajan |
90 paiki |
8701-00 |
Agriculture |
6 |
Adajan |
House No.270 |
61-75 |
Residence |
7 |
Adajan |
House No.258 |
133-38 |
Residence |
5.2It was also further declared in the aforesaid
declaration form No.1 that they have one half share in
the land bearing survey No.242 total admeasuring 9308
sq. mtrs. situated at Village Adajan being agriculture
lands. It further transpires that the competent
authority and the Deputy Collector vide order dated
18.1.1986 closed the proceedings and came to the
SCA/13749/20114
JUDGMENT
conclusion that there is no surplus land. The State
Government, in exercise of its powers under Section 34
of the Urban Land (Ceiling and Regulation) Act, 1976
(hereinafter referred to as “the Act”) undertook the
proceedings for revision of the order dated 18.1.1986
passed by the competent authority and the Deputy
Collector, Surat. It further transpires that by an
order dated 4.5.1989, the order dated 18.1.1986 came
to be quashed and set aside and remanded back the
matter to the competent authority and Deputy
Collector, Surat for denovo proceedings after giving
an opportunity of adducing the evidence and hearing to
the holders.
5.3It further transpires from the record that by an
order dated 19.10.1979, the State Government granted
exemption as contemplated under Section 21(1) of the
Act to Balubhai Gopalbhai in respect of land bearing
survey No.242 of Village Adajan admeasuring 9308 sq.
mtrs. wherein the petitioner and Gajendra Bhagubhai
claimed one half share. Similarly, the present
petitioner as well as Gajendra Babubhai applied for
exemption as contemplated under Section 20 of the Act
in respect of the land bearing survey No.95
SCA/13749/20115
JUDGMENT
admeasuring 16795 sq. mtrs., 608–609 admeasuring 2748
sq. mtrs., 235 part admeasuring 6633 sq. mtrs. and 90
part admeasuring 3600 sq. mtrs. It further transpires
that as the petitioner along with the other holders of
the land applied for cancellation of the exemption so
granted in respect of the land bearing survey No.95,
235 and 242 of Village Adajan, the State Government by
an order dated 18.11.1989 withdrew the said exemption.
It appears that after the remand of the matter as
observed above, the competent authority and the Deputy
Collector reprocessed the form submitted by Maniben
Bhagubhai on behalf of the petitioner as well as his
brother Gajendra Bhagubhai and by an order dated
31.8.1990 passed an order as contemplated under
Section 8(4) of the Act and declared the following
lands as surplus lands:-
Sr. |
Name of |
Survey No. |
Area |
|---|---|---|---|
No. |
Village |
||
1 |
Adajan |
95 |
2659.52 |
2 |
Adajan |
235 |
2419.80 |
3 |
Adajan |
90 paiki |
5101.00 |
4 |
Adajan |
73 |
9207.00 |
Total |
19387.32 |
||
Sq. Mtrs.Surplus |
5.4Being aggrieved by the aforesaid decision taken
SCA/13749/20116
JUDGMENT
by the competent authority, the petitioner filed an
appeal as contemplated under Section 33 of the Act
before the Urban Land Tribunal, Ahmedabad being Appeal
No. Surat-57/90 which came to be dismissed by an order
dated 12.3.1997. It may also be noted that the
notification as contemplated under Section 10(3) of
the Act came to be published and accordingly, a notice
as contemplated under Section 10(5) was also issued by
the competent authority and Additional Collector,
Surat dated 16.7.1992 asking the petitioner and his
brother Gajendra Bhagubhai to hand over the
possession. It further appears that the petitioner has
also placed on record of this petition information
derived under the Right to Information Act, whereby a
chart showing possession taken by the competent
authority under the provisions of the Act especially
of Village Adajan is relied upon.
6.Mr. Rakesh K. Shah, learned advocate for the
petitioner submitted that in view of the fact that
possession is not taken even though a notice came to
be issued under Section 10(5) of the Act, the
proceedings stands abated in view of Sections 3 and 4
of the Urban Land Ceiling (Repeal) Act, 1999. Mr. Shah
SCA/13749/20117JUDGMENT
has relied upon the judgment of this Court in the case
of Rajkot Municipal Corporation Vs. Lavjibhai M.
Patel, reported in 2000 (3) GLR 2293 as well as in the
case of Laxmanbhai K. Chokshi Vs. Competent Authority
reported in 2007 (3) GLR 2231 and contended that as
the possession is not taken over in accordance with
law and the petitioner is in possession of the same,
in view of the provisions of Sections 3 and 4 of the
Repeal Act, the proceedings shall stand abated. It is,
therefore, submitted that the petition deserves to be
allowed as prayed for.
7.Per contra, Ms. Asmita Patel, learned AGP has
relied upon the affidavit in reply filed on behalf of
the respondents. The learned AGP submitted that the
petition is misconceived and there is no need of any
declaration as prayed for as by a communication dated
30.4.2010, in response to the revision filed by
Maheshvariben Kishorchandra/Manish Patel, it was
already pointed out that as far as the land bearing
survey No.235 part is concerned, since the scheme
under Section 21(1) was sanctioned, possession under
the Act was not taken over.
SCA/13749/2011
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JUDGMENT
8.It would be appropriate to quote the following
from the affidavit in reply filed by the respondents:-
“7.With reference to paragraph 2 of the
petition, I say and submit that contentions
raised in this paragraph are not true and
correct and the same are hereby denied in
toto. I say and submit that the petitioner
was given numerous opportunities of hearing
before passing the order under Section 8(4)
dated 31.08.1990. I say and submit that vide
order dated 31.08.1990, after declaration of
the aforesaid lands as surplus, the
proceedings under Sections 9, 10(1), 10(3)
and 10(5) were initiated against the
petitioner. I say and submit that at that
point of time also, the petitioner has not
made any submissions and thereby given any
option. In fact and in reality, since the
possession of the said surplus lands has not
been taken by the respondent-State, the
present contention of the petitioner is
thoroughly baseless.
8.With reference to paragraphs 3 and 4 of
the petition, I say and submit that
contentions raised in these paragraphs are
not true and correct and the same are hereby
denied in toto. I say and submit that as
discussed hereinabove, since the constructive
possession of the aforesaid surplus lands of
the petitioner could not be taken over by the
respondent-State, there is as such no
question of as to taking over possession of
how much and which land by the Government
from the said Survey Numbers.
9.With reference to paragraphs 5 and 6 of
the petition, I say and submit that
contentions raised in these paragraphs are
not true and correct and the same are hereby
denied in toto. I say and submit that the
petitioner has committed mistake in narrating
facts before this Hon'ble Court. I say and
SCA/13749/2011
9
JUDGMENT
submit that the petitioner has stated that
the petitioner was issued the notice under
Section 10(5) of the U.L.C. Act, 1976 on
16.07.1992. However, in fact and in reality,
the same was issued on 06.07.1992, as against
which the petitioner had also replied in
writing through their advocate vide reply
dated 14.07.1992. Further, since the
petitioner had prayed for a Housing Scheme
for Weaker Sections of the Society under
Section 21(1) of the ULC Act, 1976, the
petitioner had prayed for staying further
proceedings under the ULC Act. In pursuance
of the same, the respondent-State could not
take over the possession of the lands in
question and, therefore, there is no question
of making payment of compensation to the
petitioner.
10.With reference to paragraphs 7 to 10 of
the petition, I say and submit that
contentions raised in these paragraphs are
not true and correct and the same are hereby
denied in toto. I say and submit that as
discussed above, the Government had not taken
over the possession of the lands in question,
there was no question of mutation of name of
the respondent-State in the revenue records.
11.With reference to paragraphs 11 to 19 of
the petition, I say and submit that
contentions raised in these paragraphs are
not true and correct and the same are hereby
denied in toto. I say and submit that since
on the facts stated hereinabove, the
respondent-State could not take over the
possession and since the ULC Repeal Act came
into force in the year 1999, no proceedings
could be initiated in that respect by the
respondent-State. I say and submit that in
view of the provisions of Section 4 of the
ULC Repeal Act, 1999 as well as in view of
the circular dated 15.04.1999 since the
proceedings pending on that date were to be
closed down, no further proceedings are
required to be initiated as per the say of
SCA/13749/2011
10
JUDGMENT
the petitioner. I say and submit that since
the petitioner had prayed for doing the
development work in view of Section 21(1) of
the Act and since all the proceedings were
dropped on coming into force of ULC Repeal
Act, 1999, there is no hindrance to the
development work on the lands in question.
Thus, present petition preferred by the
petitioner seeking the reliefs as prayed for
in the petition is absolutely misconstrued
and baseless.”
9. Considering the aforesaid statement made on oath,
it clearly transpires that the possession is not taken
and in fact as averred in the affidavit in reply, the
proceedings under the Act were closed in view of the
provisions of Section 4 of the ULC Repeal Act.
10.It would be advantages at this stage to refer to
the decision of this Court in the case of Rajkot
Municipal Corporation (supra), wherein it has been
held as under:-
“26.We have given our thoughful consideration
to the above submissions of Shri Tanna. In
our view detailed discussion is not required
on the above points raised by Shri Tanna in
view of the Repeal of the Urban Land Ceiling
Act through the Repeal Act of 1999. Whether
the order of the State Government u/s.34 of
the ULC Act is valid or void and nulity makes
no difference for the obvious reason that the
provisions of Section 3 of the Repeal Act are
applicable to the facts of the case before us.
It is evident from the record that so far
possession of the excess land has not been
SCA/13749/2011
11
JUDGMENT
taken over by the State Government or any
person duly authorised by the State Government
in this behalf or the Competent Authority. If
the Competent Authority has not taken
possession of the excess land nor the State
Government or any person duly authorised by
the State Government has taken possession of
the excess land as provided in Section 10(3)
and 10(6) of the Act, the notional vesting
of the vacant land in the State Government
will not render the State Government to be
owner of excess vacant land.
27.Section 3(1) of the Repeal Act provides
that the repeal of the principal act shall not
affect vesting of any vacant land under
Sub.Section 3 of Section 10 possession of
which has been taken over by the State
Government or any person duly authorised by
the State Government in this behalf or the
Competent Authority.
28.It therefore follows from this provision
that if excess land has been declared by the
competent Authority which has been confirmed
in Appeal, but possession of vacant land was
not taken over by the State Government or any
person duly authorised by the State
Government in this behalf then under the
aforesaid provision the State Government
cannot be treated as owner of the excess land.
It is only where the possession is taken over
by the State Government u/s.10(3) of the Act
that the provisions of the Repeal Act shall
not affect the right and title of the State
Government.
29.It would be convenient to refer to
Section 4 of the Repeal Act also. If the State
Government has remanded the matter to the
Competent Authority then all proceedings
relating to any order made or purported to be
made under the Principal Act pending
immediately before the commencement of this
Act before or any Court, Tribunal or other
Authority shall abate. Even the writ petitions
SCA/13749/2011
12
JUDGMENT
pending on the day of enforcement of Repeal
Act will also abate has laid down in
M.M.Patel v/s. Competent Authority, 1999 (2)
G.L.H. 350 1999 (3) GLR 2105.”
11.Similar view is also taken by this Court in the
case of Laxmanbhai K. Chokshi (supra).
12.Consequently, considering the averments made in
the affidavit in reply, as the possession of the land
which was otherwise declared surplus as per the order
dated 31.8.1990 confirmed in appeal vide order dated
12.3.1997 and as per the statement made by the
respondent authorities, since the proceedings are
closed, and as per the ratio laid down by this Hon'ble
Court in the case of Rajkot Municipal Corporation Vs.
Lavjibhai M. Patel (supra), the resultant effect would
be that the proceedings under the Act stands abated.
It is, however, made clear that the conclusion arrived
at is only limited to the proceedings under the Act
and shall have no application qua any other acts.
13.With these observations, the petition is disposed
of. Rule is made absolute accordingly only to the
aforesaid extent with no order as to costs.
SCA/13749/2011
13
JUDGMENT
[R.M.CHHAYA, J.]
mrpandya
3 issues framed by the court
Whether proceedings under the Urban Land Ceiling Act stand abated under the Urban Land Ceiling (Repeal) Act, 1999 when the State Government failed to take possession of the declared surplus land.
Whether the Repeal Act, 1999 operates retrospectively to nullify orders made before its commencement regarding land where possession was not taken.
Whether the petitioner is entitled to a declaration that proceedings has abated and the earlier order has no effect.
Colour shows how this judgement treated each authority
Rajkot Municipal Corporation vs. Lavjibhai M. PatelExplained¶82
Rajkot Municipal Corporation Vs. Lavjibhai M. Patel, 2000 (3) GLR 2293
Laxmanbhai K. Chokshi vs. Competent AuthorityFollowed¶96
Laxmanbhai K. Chokshi Vs. Competent Authority, 2007 (3) GLR 2231
M. M. Patel vs. Competent AuthorityReferred¶94
M.M.Patel v/s. Competent Authority, 1999 (2) G.L.H. 350 / 1999 (3) GLR 2105
3 provisions across 1 enactments
Kishorchandra Bhagubhai
State of Gujarat through the Principal Secretary
R. M. Chhaya
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court